When Prosecutors Bury Police Lies

Court records and interviews with former prosecutors show that internal assessments of police dishonesty are rarely memorialized, potentially violating the rights of people charged in criminal cases and sometimes keeping the records of bad cops clean.

When Prosecutors Bury Police Lies

Court records and interviews with former prosecutors show that internal assessments of police dishonesty are rarely memorialized, potentially violating the rights of people charged in criminal cases and sometimes keeping the records of bad cops clean.

On a late March night in 2016, Jeremy Turnbull stood outside a friend’s apartment building in the Bronx’s Morris Heights neighborhood. Turnbull, then 25 years old, was frustrated. He had taken a cab to pick up his girlfriend and persuaded the driver to wait until she came outside. As Turnbull paced in front of the building, an unmarked police car approached.

What happened next is disputed by defense attorneys and police.

Police told prosecutors they approached the cab because it was double parked. Officer Valdrin Niqki said that when he got out of his patrol vehicle, he saw a bulge in Turnbull’s leather jacket—from 10 feet away. Officer Nikqi and a group of officers walked over to Turnbull. One asked, “Sir, can you stop for a second?” According to police, Turnbull, who had no criminal record, immediately admitted, “I have a gun, officer.” The officers said they patted him down and found a loaded .22 caliber revolver. But a surveillance video of the incident obtained by Turnbull’s attorney contradicted the officers’ version of events. In the video, Officer Nikqi jumped out first with three other officers behind him. He ran to Turnbull as soon as their car pulled up to the cab. No conversation can be seen beforehand. In less than 10 seconds, Officer Nikqi had Turnbull up against a car and in handcuffs.

Several seconds after the stop are missing from the video because of a camera glitch, according to an NYPD affidavit. But no gun is visible in the existing footage.

A few weeks after a defense attorney raised concerns about the stop and played the video for a judge, prosecutors from the Bronx district attorney’s office dropped the case. They said Officer Nikqi could not have recognized the bulge as a gun, making his stop and pursuit unlawful.

But despite video that called Nikqi’s credibility into question, Bronx prosecutors continued to accept gun cases from the officer. A week later, Nikqiarrested another young man in the Bronx, Frankie Breton. Again, he claimed he found a loaded handgun.But prosecutors never told Breton’s attorney, Andrew Stengel, about Nikqi’s prior conduct in the Turnbull case—a possible violation of their constitutional obligation to disclose material that may impugn an officer’s credibility under the U.S. Supreme Court decisions Brady v. Maryland and Giglio v. United States. When Stengel found out about Nikqi’s conduct from another defense attorney, the DA’s office responded that it was “not aware of any allegations of wrongdoing or falsities” against the officer. Stengel says prosecutors with the DA’s office are engaged in a cover up. He argues they had to know about Nikqi’s credibility, since they dropped a gun case right after video of Turnbull’s arrest surfaced. “The behavior of police Officer Nikqi exposed the Bronx DA’s office practice of sweeping police officers with credibility problems under the rug,” he said. “Who knows what’s under the rug, but I have a feeling it’s really ugly.”

A WNYC investigation in partnership with The Appeal has found that prosecutors in all five boroughs consistently fail to document similar signs of officer dishonesty. Interviews with more than a dozen former prosecutors from Brooklyn, the Bronx, Queens, Staten Island, and Manhattan DA’s offices, disclosure letters from the Manhattan DA’s office, and a review of numerous cases suggest internal systems to track police misconduct are haphazard at best, and intentionally negligent at worst.

Former prosecutors say that internal assessments of dishonesty are rarely memorialized. And even when clear credibility findings regarding officers are made by judges, several recent cases suggest prosecutors fail to consistently track and disclose these records. In other cases, prosecutors even went out of their way to keep an officer’s record clean, despite an extensively documented history of lying.

“If it’s something that can be swept under the rug, then you know dismiss the case, and move forward,” said one former Bronx prosecutor, who left the office in 2017 and requested anonymity citing fears of professional reprisal. “And that’s what happened in cases I’ve had that had those issues. It was kinda just, you know, let’s dismiss these cases and move forward.”

NYPD Assistant Commissioner Devora Kaye said the department has robust procedures for reviewing and vetting officer credibility issues. Kaye said the NYPD began soliciting adverse credibility information from city and federal prosecutors in 2014. Since 2016, all credibility findings are scrutinized by a special committee, which can recommend either an Internal Affairs investigation, or specialized training for the officer, according to Kaye. Kaye also said the department shares information relevant to the credibility of officers with prosecutors “whenever an officer testifies in court, and as a part of the discovery process.” The Bronx, Manhattan, Staten Island, Brooklyn, and Queens district attorney’s offices declined interview requests. None of the offices responded to specific written questions in advance of this story. The Brooklyn and Queens offices provided WNYC and The Appeal with previous statements they have made to WNYC regarding officer credibility.

In a statement to The Appeal and WNYC, Police Benevolent Association president Patrick Lynch denounced efforts by prosecutors to develop databases on officer credibility. “By compiling databases of highly prejudicial information with little or no probative value, they are not only derailing the careers of honest cops. They are virtually assuring that guilty defendants will walk free,” he said. “If prosecutors continue down this path and abandon their duty to represent crime victims and the public, our criminal justice system will cease to function altogether.”

Hiding the Warning Signs

As WNYC has previously reported, New York City DAs have quietly developed officer credibility databases based on lawsuits and findings from judges and police review agencies. But through pleas, dismissals, or other means, most cases end before officers have to testify and judicial credibility findings can be made. Consequently, prosecutors are often the actors in the criminal legal system who have the most direct information on police lying. But their internal assessments usually remain behind closed office doors.The problem of prosecutors ignoring or burying indications of police perjury has existed for decades, according to Larry Cunningham, a former Bronx prosecutor who is currently an associate dean at the St. John’s University School of Law. Cunningham has studied how prosecutors deal with police perjury—or “testilying,” in police jargon—for 20 years.

“There’s still no good data on how often police perjury occurs,” Cunningham said, noting that little has changed since he published a law review paper on the topic 20 years ago. “It’s a violation of their ethical standards, but it also goes against the core function of the prosecutor, which is to see justice done, not just a conviction. When you see prosecutors covering up, it’s really alarming.”

NYPD’s testilying problem resurfaced during the departmental trial of former Officer Daniel Pantaleo over the 2014 death of Eric Garner in Staten Island. In her written decision, deputy trial commissioner Rosemarie Maldonado wrote that Pantaleo’s account of events was “untruthful” and contributed to her decision to recommend his termination. Maldonado’s opinion also questioned the veracity of several other officers present on the day Garner died.

Despite recent efforts by prosecutors to formalize the tracking of police dishonesty, former prosecutors say much of what DAs know is never put on paper.

Lawrence Mottola, a Brooklyn prosecutor until 2017, says front-line prosecutors were not expected to memorialize and turn over evaluations of officer credibility. He said they were reluctant to do so without a formal investigation and finding.

“Internally there was no mandate that a decision like that would go up the chain because it wasn’t decided at that point that it was a 100 percent that, you know, the officer is lying,” he said. Instead, Mottola said, the only credibility records he received came from external agencies like the police department’s Internal Affairs Bureau or the Civilian Complaint Review Board.

“I’ve never had a situation where it was just the DA’s office deciding on a handful of cases that the officer was not credible,” he said.

Other former prosecutors, who requested anonymity citing fears of professional reprisal, described similar patchwork practices.

“A lot of it is word of mouth. There is no regimented system for knowing which cops,” said a former high-ranking Manhattan prosecutor who served for decades under Cyrus Vance and his predecessor, Robert Morgenthau. “The best practice is to notify the official corruption or conviction integrity unit.”

The former Manhattan prosecutor said, however, that reporting misconduct was effectively left up to individual assistant district attorneys. “If you didn’t write an officer up, no one else in our office would know.” The former Bronx prosecutor who left in 2017 said that even if he did notify his superiors that an officer lied, such referrals would not necessarily make it into their tracking system. He said only those referrals that brought about criminal investigations would result incredibility disclosures.

Through New York’s Freedom of Information Law (FOIL), WNYC and The Appeal obtained policy documents from Bronx and Staten Island prosecutors on police credibility disclosures, which support the former prosecutors’ claims of haphazard tracking systems. The records are partially redacted, but their visible portions do not outline how prosecutors should memorialize and track internal evaluations of police dishonesty.

Similarly, between August 2017 and January 2019, the Manhattan DA’s office released over two dozen credibility disclosure letters to defense attorneys, according to FOIL documents obtained by defense attorney Stengel. None cited internal knowledge of officer dishonesty. Most referred to lawsuits, criminal convictions, judicial findings, or police disciplinary actions. (Stengel, himself once a Manhattan prosecutor, is suingthe Manhattan DA’s office to secure the release of its internal credibility list.)

Tyler Maulsby, chairperson of the New York City Bar Association’s Committee on Professional Ethics, said internal information on officer dishonesty must be memorialized so it can be disclosed when necessary in future cases. If a single prosecutor has information that could impeach an officer’s credibility, he pointed out, then the whole DA’s office is expected to know it as well.

“Unless a prosecutor’s office has systems in place to deal with that, they can find themselves in a really ethically murky situation,” he said, noting that he was expressing his own opinion, not that of the bar association.Some former prosecutors expressed hesitancy about memorializing internal assessments of officer credibility, which they argued may not be fully formed.

But Maulsby cautioned against narrow interpretations of what must be tracked and turned over: “As soon as you start having an overly technical reading of both the ethics rules and the substantive disclosure obligations, you are really starting to play a game of chicken with your law license, determining whether—looking backwards—a grievance committee is going to agree with you in that interpretation of the rule.”

Documented problems, continued testimony

Even when judges, police-review agencies, and civil courts bring clear evidence of officer dishonesty to light, DA’s offices’ tracking systems do not guarantee that their histories are documented and disclosed to defense attorneys. As a result, officers who engage in documented patterns of misconduct and untruthfulness are permitted to stay on the street, make arrests, and testify in court.

Case in point: The records of two veteran narcotics detectives in Manhattan and Brooklyn. In November 2015, a Manhattan judge formally reprimanded Manhattan North narcotics squad Detective Sid L. Caesar for untruthful testimony. The decision stemmed from a drug arrest earlier that year in which Detective Caesar claimed to have observed a hand-to-hand sale of two rocks of crack cocaine and a glassine of heroin on 125th Street from his car. His vehicle, however, was parked 100 feet across from the bustling Harlem thoroughfare.

“Even if Det. Caesar’s car was parked in one of the two driving lanes, it defies all logic that he would have the ability to observe the passing of a small object,” Judge Juan M. Merchan wrote. As a result of the judge’s ruling, the drugs that Caesar seized during the arrest were suppressed as evidence and the felony charges were dismissed.

It is unclear, however, if this formal decision was included in the Manhattan DA’s office list of officers posing potential credibility problems shortly after. Detective Caesar’s adverse credibility ruling is not included in the disclosure letters sent by Manhattan prosecutors to defense counsel from 2017 through 2018, even though he testified in a case as late as mid-2017.

According to the former high-ranking Manhattan assistant DA, prosecutors are supposed to find out about an officer’s problematic history by automated alert when they query the officer’s tax number, a unique identifier assigned to every officer in the city. However, that system was not comprehensive, and findings like Caesar’s case could be missed.

“If I didn’t know they had a finding against them, it might not trigger at all,“ the former prosecutor said. In his 25-year career, Brooklyn narcotics Detective Waliur Rahman has participated in over 1,900 arrests and 700 search warrants. He also has had at least 31 civil rights lawsuits filed against him, resulting in at least $1.65 million in settlement payments by the city. Many of these lawsuits stemmed from illegal apartment searches for narcotics. According to a database of civil suits against NYPD officers maintained by the city law department, Rahman was the third most frequently sued officer in the department in the past five years.

In 2014, state Supreme Court Justice ShawnDya Simpson found Detective Rahman’s testimony not credible in a Crown Heights marijuana case. Rahman claimed that while pursuing five drug suspects into an apartment building on Lincoln Place, he saw a man standing in an open doorway, holding a resealable plastic bag of marijuana and standing next to a glass jar full of weed. “The court is not persuaded by Detective Rahman’s testimony that he observed marijuana in plain view from the common hallway of the subject building,” wrote Justice Simpson. Instead, she concluded that it was more likely that detectives illegally entered the apartment and searched it.

Despite Rahman’s record, prosecutors in subsequent cases failed to track and disclose instances that called his veracity into question.In September 2016, Rahman swore in an affidavit that he seized over two ounces of “alleged Ecstasy,” as well as marijuana and numerous household items containing cocaine in a raid on an apartment in Crown Heights. According to the Brooklyn Defender Services, which represented one of the people charged in the case, prosecutors never turned over the 2014 adverse credibility finding. Eventually the felony drug case fell apart. Lab results did not test positive for Ecstasy, and only one of the items tested positive for cocaine. However, that item, a plate, did not even have enough material to be weighed.

In response to questions about procedures for tracking problem officers, Brooklyn district attorney’s office spokesperson Oren Yaniv said the agency takes its responsibilities seriously and goes beyond the statutory requirements in turning over relevant credibility material about officers.

“Our assistants often work with the same police officers and, when they identify those who raise concerns about credibility, we screen cases accordingly,” Yaniv said, adding that the district attorney’s office also consults with NYPD about concerns over specific officers. While stating that Brooklyn prosecutors routinely disclose credibility information to defense counsel, Yaniv declined to answer specific questions about Detective Rahman’s conduct.

Scott Hechinger, a senior staff attorney at the Brooklyn Defender Services, says prosecutors should not continue to accept cases from officers with documented credibility issues.

“It sends a really dangerous message, not just to that individual officer but to the entire force: ‘You can do whatever you want to make an arrest, and you are going to keep your job and prosecutors are going to continue to rely on you,’” he said.

Officer Nikqi and Detectives Rahman and Caesar maintain active duty status, according to the NYPD. WNYC and The Appeal attempted to contact Officer Nikqi and Detectives Rahman and Caesar, but received no response.

“It’s never a surprise when criminal defenders baselessly attack police officers’ credibility—they are trying to win acquittals for their clients,” said Lynch of the Police Benevolent Association. “Cops on the stand are routinely subjected to frivolous memory tests or grilled about unsworn and unsubstantiated civilian complaints. They may also be subjected to adverse credibility findings that reveal more about a judge’s biases than the truthfulness of the police officers’ testimony.”

Why secrecy reigns

Some former prosecutors said DA’s offices are hesitant to call out police perjury because of their need to maintain relationships with law enforcement.

“You want to be able to have a relationship where you build cases and the cops come in and they give you the information,” said the former Bronx prosecutor. “You need to prosecute these cases and you can’t do them without the police, so I think the DA’s office has to walk that fine line.”

“Would you necessarily dime the cop out? That’s where things get fuzzy,” said the former Manhattan prosecutor, also noting that prosecutors are hesitant to harm their relationships with active officers who bring in cases for the DA’s office.But in other parts of the country, newly elected prosecutors are pushing to make these tracking systems far more comprehensive. Larry Krasner, who was elected Philadelphia DA last year, scoffed at concerns over upsetting police partners.

“That is not a criminal justice system,” he said. “That is a criminal justice system kidnapped by corrupt police officers with prosecutors who are entirely complicit. To me, that’s absolutely disgusting.”

Krasner said the Philadelphia DA’s office database has expanded to include the office’s internal assessments of police lying. He cited an open case in which a prosecutor heard two officers talking to each other outside a courtroom, which they were not supposed to do because they were witnesses. One officer, he said, then denied in court that he did so. Krasner said his prosecutor created a memo about the incident.

“It’s a clear situation in which we know there’s been some untruthfulness, and it got on the database fairly quickly, and it is affecting our willingness to call that police officer to testify,” he said.

Stengel, the defense attorney, maintains that a lax approach to untruthfulness increases the likelihood of wrongful convictions. “It’ll happen time and time again,” he said. “The jury won’t have information about police officer X and Y not being truthful in a prior case, whether or not it was a finding by a judge or a prosecutor alone in their office [who] learns, ‘Huh, this police officer, now that I’ve interviewed him or her, is not being truthful.’”

Fighting accountability

In some cases, prosecutors have even gone out of their way to keep officer credibility issues out of the official court record.

After the gun case against Turnbull fell apart last March, he sued the NYPD, demanding the release of Officer Nikqi’s secret grand jury testimony. His attorney, Neill Wollerstein, believed the sealed minutes would provide more evidence of dishonesty when compared with the footage of the arrest.Though the Bronx DA’s office dismissed the charges in Turnbull’s case over a year earlier, high-ranking Bronx prosecutor Julian Bond O’Connor intervened in the civil suit in August, filing a non-party motion to block Turnbull’s access to Officer Nikqi’s statements. A week later, Judge Mitchell Danzinger struck down the prosecutor’s motion, noting “several inconsistencies” between surveillance footage and Nikqi’s sworn statements. Judge Danziger ordered the disclosure of the grand jury minutes, writing that “the public interest in disclosure of the minutes outweighs the one favoring secrecy.”

In an interview with WNYC and The Appeal, Wollerstein excoriated the DA’s office’s conduct. “They are public officers,” he said. “They have an obligation to do something. Not just turn their head and pretend it didn’t happen. Their job is to do justice and do right [by] people charged with crimes.”

Turnbull maintains that his 2015 arrest was based on a lie. He said that day and his subsequent stint in jail have forever changed how he feels about police.

“I mean I feel uncomfortable walking outside. And when I do see the cops coming by, like my heart starts going up, like ‘I hope these dudes do not bother me,’” he said.

Turnbull said that untruthful officers need to be tracked and held accountable so that other people do not experience what happened to him.

“You’re doing something wrong, so, I mean yes, you should be on thedamnlist.”